Azkour v. Maucort and Little Rest Twelve, Inc.

Now
before the Court is Defendants' motion for sanctions.
(Doc. No. 283 at 3.) For the reasons set forth below, the
Court grants Defendants' motion and dismisses this case
with prejudice.

I.
Background

Plaintiff
commenced this action on August 8, 2011, alleging that the
general manager of the restaurant where he was formerly
employed improperly refused to rehire him or write him a
letter of recommendation. (Doc. Nos. 1, 2.) The operative
pleading, the Third Amended Complaint, was filed on February
2, 2012, and contains fifteen causes of action involving age
discrimination, race discrimination, and retaliation, in
violation of various federal, state, and local statutes.
(Doc. No. 40.) Over the course of this litigation, the Court
has issued rulings on Defendants' motions to dismiss
(Doc. Nos. 75, 112) and for summary judgment (Doc. No. 224),
resulting in dismissal of all but one of Plaintiffs claims;
accordingly, the only remaining cause of action alleges that
Defendants discriminated against Plaintiff on the basis on
his race in violation of 42 U.S.C. § 1981.
(Id.) As the record amply reflects, the Court has
endeavored to adjudicate Plaintiffs case on the merits.
Nevertheless, Plaintiff has a lengthy and well-documented
history of abusive conduct directed toward Defendants, their
counsel, and the Court, and the record is replete with the
Court's attempts to manage Plaintiff's unruly
behavior.[1] As far back as January 13, 2012, the Court
issued an order in response to a “series of disturbing
and increasingly erratic letters” received from
Plaintiff, in which Plaintiff made “numerous puzzling
and at times incoherent and rambling references to matters
that ha[d] nothing to do with this litigation” and
included “an embedded video of a Tennessee state
legislator discussing the Koran.” (Doc. No. 19 at 2.)
In that order, the Court also addressed several
“‘very disturbing and potentially threatening
email[s]' sent by Plaintiff to Defendants personally and
to their counsel.” (Id.) In one of those
emails, Plaintiff referred to Defendants as
“coc******rs.” (Id. at 19). In another,
he wrote, “I KNOW YOU BELIEVE I AM COOCOO, BUT I AM
NOT, ” and “NOBODY IS GOING TO ABUSE ME ANYMORE.
I'D RATHER DIE, THAN BE ABUSED.” (Id. at
17.) The Court directed Plaintiff “to refrain from any
and all threatening and inappropriate communication with
Defendants' counsel, ” and warned Plaintiff that
“the Court will have no choice but to consider imposing
sanctions against him” in the event that Plaintiff
“is unwilling, or truly unable, to conduct himself in
an appropriate and rational manner . . . .”
(Id. at 3.)

Unfortunately,
Plaintiff's harassing communications did not end. In the
months that followed, he continued to send letters to defense
counsel containing “wild accusations” and
“insults, ” such as one e-mail in which he wrote
to defense counsel: “You must have peanuts in your
skull, instead of a brain. . . . You're a retarded
species. I have never seen your like in any continent.”
(April 29, 2012 Letter from Plaintiff.) Plaintiff also filed
a series of frivolous motions, including a motion to hold
defense counsel in contempt of court (Doc. No. 52) and a
motion to sanction defendants for “unlawful acts of
witness intimidation and subornation of perjury” (Doc.
No. 55). The Court concluded that these “repeated
filings constitute[d] an abuse of the [Electronic Case Filing
(“ECF”)] system” and, in an order dated May
2, 2012, revoked Plaintiff's ECF account, ordered
Plaintiff to “immediately cease all communication with
Defendants' counsel and the Court that is not narrowly
focused on the factual and legal issues properly before the
Court” (id. at 2), and warned that
“[f]ailure to comply with this Order will result in
sanctions being imposed against Plaintiff”
(id. at 3).

Around
the same time in early 2012, Plaintiff filed a motion for the
appointment of a guardian ad litem in which he represented to
the Court that he suffered from “mental
disabilities.” (Doc. No. 24.) The magistrate judge to
whom the Court referred this case for general pretrial
supervision, Judge Fox, properly denied Plaintiff's
request, noting that there is “no necessary
relationship between mental incompetence of the sort that
would warrant the appointment of a legal representative and
various forms of mental derangement or personality disorder
that may cause utterly bizarre and destructive conduct in
litigation.” (Doc. No. 86 at 8 (quoting Ferrelli v.
River Manor Health Care Ctr., 323 F.3d 196, 203 (2d Cir.
2003) (internal quotation marks omitted).) Even so,
Plaintiff's motion injected the recurring issue of his
mental health into this case. See generally Azkour v.
Little Rest Twelve, No. 10-cv-4132 (RJS), 2017 WL
1609125, at *1 (S.D.N.Y. Apr. 28, 2017). Since then,
Plaintiff has at times claimed to be mentally ill, suffering
from “several mental health disorders” including
“Adjustment Disorder, ” “Chronic Post
Traumatic Stress Disorder, ” and “Major
Depression Disorder” (Doc. No. 92 ¶ 121), while at
other times he has denied ever making those statements and
attacked the underlying medical reports that he himself
submitted with his guardian ad litem request as false
attempts to discredit him (see, e.g., Doc. No. 223;
Doc. No. 351, No. 10-cv-4132 (“FLSA Doc. No.); Doc. No.
298 at 17:18-19 (“Dec. 18 Tr.”); Doc. No. 300 at
38:15-40:9 (“Jan. 4 Tr.”)).

On
October 7, 2013, Judge Fox denied Plaintiff's request to
file a fourth amended complaint (Doc. No. 127), prompting
Plaintiff to file a motion for reconsideration where he again
made insulting and potentially menacing comments directed
toward defense counsel (Doc. No. 131). Among other things,
Plaintiff described defense counsel as a “pretentious
seventh grade pupil” who “uses big words without
knowing their meaning, ” and claimed that he himself
possessed “skills that require federal security
clearance, ” a strange comment that in context caused
defense counsel unease. (Doc. No. 131 at 19, 20 n.12.)
Plaintiff's motion provoked the Court to issue an order
reminding Plaintiff that the Court had “already
addressed in a previous order Plaintiff's inappropriate
behavior, ” warning that “if Plaintiff cannot
abide by normal standards of decorum, the Court must consider
sanctions, ” and ordering Plaintiff to show cause why
he should not be sanctioned for filing “a harassing
submission.” (Doc. No. 133.) Thereafter, on April 2,
2014, the Court declined to sanction Plaintiff, but stressed
that the order constituted his “last warning”
before sanctions would be imposed. (Doc. No. 164.) Indeed,
the Court advised Plaintiff that if he “ever again
ma[de] any statement targeted towards Defendants' counsel
that could, in any way, be construed as offensive or
threatening, the Court [would] sanction Plaintiff $1,
000.” (Id.)

Just
weeks later, on May 1, 2014, Plaintiff again
violated the Court's directive, this time in his related
FLSA action, by filing a submission in which he accused
defense counsel of, among other things, “lack[ing] the
required sound judgment and mental capacity for an attorney
to perform his duty.” (FLSA Doc. No. 205.) The Court
issued a second order to show cause, which was met with an
even more troubling response from Plaintiff, who accused the
Court of “join[ing] [defense] counsel in his foul
play.” (FLSA Doc. No. 221.) Plaintiff went on to
“question counsel's judgment . . . [and] this
Court's as well”; he also accused Defendants of
perjury, accused the Court of “bias and hostility,
” and insisted that his offensive statements about
defense counsel were factually accurate. (Id.)
Plaintiff further maintained that he could not be sanctioned
because the Court had not yet made a finding of “bad
faith.” (Id. at 11). In light of
Plaintiff's submissions, the Court sanctioned Plaintiff
$2, 000 on June 2, 2014. (See FLSA Doc. No. 224.)
The Court also warned Plaintiff that future violations of
this sort - in any “future legal filings” - would
result in sanctions of $5, 000. (Id.)

Nevertheless,
in light of the Second Circuit's clear preference to
resolve cases on the merits, see Sec. & Exch.
Comm'n v. Setteducate, 419 F. App'x 23, 24 (2d
Cir. 2011), the Court - and Judge Fox - continued to press
forward in Plaintiff's two cases. After granting
Plaintiff partial summary judgment with respect to liability
in the FLSA action (FLSA Doc. No. 98), the Court presided
over a jury trial on the issue of damages in July 2014, at
which time the jury awarded Plaintiff twelve weeks of back
pay and $50, 000 in punitive damages (FLSA Doc. No. 279).
Following post-trial briefing, the Court denied
Plaintiff's motion for judgment as a matter of law or, in
the alternative, for a new trial and Defendants' motion
for judgment as a matter of law on the issue of back pay.
(FLSA Doc. No. 317.) However, in light of Plaintiff's
failure to put on any evidence, the Court granted
Defendants' motion for judgment as a matter of law as to
punitive damages, an issue for which Plaintiff carried the
burden of proof. (Id.) Plaintiff thereafter appealed
the Court's rulings, which were affirmed by the Second
Circuit. Azkour v. Little Rest Twelve, Inc., 645 F.
App'x 98, 100 (2d Cir.), cert. denied, 137 S.Ct.
390 (2016), reh'g denied, 137 S.Ct. 716 (2017).

In this
case - the discrimination/retaliation action - Defendants
moved for summary judgment, which was rejected by Judge Fox
in a report and recommendation that was ultimately adopted by
the Court. (Doc. Nos. 200, 224.) Nevertheless, before and
after these rulings, Plaintiff persisted in making ad
hominem attacks against defense counsel. For example,
Plaintiff filed a number of requests for this Court to
sanction counsel (Doc. Nos. 207, 210), disqualify counsel
(Doc. No. 213), and refer counsel to the District's
Grievance Committee for suspension or disbarment (Doc. No.
215). Throughout these filings, Plaintiff made spurious and
baseless allegations against defense counsel, including that
he had committed criminal acts of perjury (Doc. No. 213) and
engaged in bad-faith “scare tactics” and a
“pattern of intimidation” against Plaintiff (Doc.
No. 210 at 5). Plaintiff's malicious filings required the
Court to issue an order, dated November 18, 2015, denying
Plaintiff's numerous requests for sanctions and other
relief. (Doc. No. 217.) In that order, the Court also made
the unambiguous finding that “Plaintiff's papers
[were] clearly threatening, offensive, and abusive.”
(Id. at 11-12.) After explaining why Plaintiff's
motions were frivolous, providing a lengthy catalog of
Plaintiff's pattern of abusive tactics, and elaborating
on the Court's inherent power to sanction recalcitrant
litigants, the Court again put Plaintiff on firm notice that
“future filings in violation of this Order may warrant
sanctions and other penalties, including dismissal of this
action.” (Id. at 7-13.) Although the Court
declined to impose monetary sanctions at that time, the Court
prohibited Plaintiff from filing any “new submissions .
. . without first seeking permission . . . and obtaining an
order from the Court authorizing the filing.”
(Id.)

Remarkably,
on February 4, 2016, the Court received a letter from defense
counsel notifying the Court of additional offensive
statements made by Plaintiff in a letter submitted to the
Second Circuit pertaining to his related FLSA case, which was
at that point on appeal. (Doc. No. 218.) Plaintiff's
submission, a request for oral argument, asserted that
“not even a mentally deficient person [could] accept
Judge Sullivan's rulings, ” suggested that defense
counsel had an “unhinged mind, ” called
“into question the sanity of [Defendants] and their
counsel, ” and accused defense counsel of “dirty
tactics” and “vile attacks” against
Plaintiff. (Doc. No. 218-1.) Because Plaintiff's
submissions to the Second Circuit did not technically violate
the Court's previous order, which only applied to
submissions made by Plaintiff in “this action, ”
the Court declined to impose sanctions. (Doc. No. 219.)
Nevertheless, the Court again reminded Plaintiff that the
Court would “not tolerate future frivolous submissions
in this case that are primarily intended to harass and
intimidate Defendants, their counsel, or the Court.”
(Id. at 2.)

In the
fall of 2016, Plaintiff unleashed a new series of letters in
the FLSA action that were full of invective and clearly in
violation of the Court's earlier order requiring
Plaintiff to obtain the Court's permission before filing
any documents. (FLSA Doc. Nos. 349, 351, 352.) In one such
submission - ostensibly seeking reconsideration of the
Court's prior order denying his motion for judgment as a
matter of law - Plaintiff asserted that defense counsel had
“maliciously used [Plaintiff's] alleged mental
health condition to initiate criminal proceedings”
against him and “denied [Plaintiff] access to the
courthouse building on false allegations of violence due to
mental illness.” (FLSA Doc. No. 351.) Among the targets
of Plaintiff's tirades was the physician who signed a
report attached to Plaintiff's own motion for
the appointment of a guardian ad litem, who Plaintiff accused
of “fraudulently” diagnosing him with
“major depressive disorder, ”
“post-traumatic stress disorder, ”
“delusional disorder, ” “alcohol disorder,
” and “chronic paranoid schizophrenia.”
(Id. at 3; Doc. No. 224 at 25.) Notwithstanding the
fact that Plaintiff himself had introduced these documents
into the record, Plaintiff now accused the physician of
“fantastically misrepresenting facts, ”
deliberately misdiagnosing him, and of being an
“unhinged” individual. (FLSA Doc. No. 351 at 3
& n.6.) In an order dated July 14, 2017, the Court noted
that Plaintiff had continued his pattern of making baseless
accusations against third parties, and although the Court
again declined to impose sanctions on Plaintiff, it
nevertheless reiterated that “no further violations of
its orders or threatening and insulting submissions of any
kind” would be tolerated. (Doc. No. 224.) The Court
warned that failure to comply with the Court's order
would result in dismissal of this action. (Id.) This
marked the seventh time that Plaintiff had been threatened
with sanctions, including the ultimate sanction of dismissal.
(See Doc. Nos. 19, 60, 133, 164, 217, 219, 224.)

II.
Recent Events

On
October 24, 2017, the Court issued an order scheduling a
trial in this matter to commence on January 8, 2018. (Doc.
No. 234.) Since then, Plaintiff has continued to flout the
Court's unambiguous orders and make baseless accusations
against the Court and defense counsel. For example, after the
deadline for pretrial submissions elapsed, Plaintiff filed
more than a dozen letters requesting various Court actions.
Plaintiff also issued trial subpoenas to third parties
previously unidentified in this litigation, thus
circumventing the pretrial order's requirement that all
trial witnesses be identified by November 17, 2017.
(Id. at 3.) The Court was forced to hold a pretrial
conference on December 18, 2017 - significantly earlier than
originally scheduled - because Plaintiff's trial
subpoenas not only surprised the Court and defense counsel,
but also third parties who were inappropriately served with
such subpoenas.

At the
December 18, 2018 conference, the Court ruled on the
admissibility of the testimony of the witnesses subpoenaed by
Plaintiff and unambiguously instructed Plaintiff that he
would not be permitted to call expert witnesses who had not
been properly noticed during discovery. (Dec. 18 Tr. 18:16-18
(“[W]e're not going to be having experts in this
case because nobody has noticed any experts in this
case.”) The Court also made clear that the parties were
not “redoing discovery” because “discovery
is over.” (Id. 30:2.) Even so, Plaintiff
insisted on pursuing the issue further, at which point the
Court said, “Again, I thought I made it clear. . . .
[T]here is no relevance to expert testimony in this case. It
seems to me that you haven't given notice of your desire
to call experts in this case. So for those reasons
you'[re] precluded from introducing that evidence, for
both those reasons. . . . There are not going to be any
experts testifying.” (Id.
33:22-34:4.)[2]

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Notwithstanding
the Court&#39;s clear - and repeated - rulings, Plaintiff
deliberately defied the Court&#39;s orders. Two days after
the conference, Plaintiff filed a &ldquo;Notice of Rule
30(b)(6) Deposition&rdquo; directed toward an expert witness
whose testimony the Court had already explicitly precluded
during the December 18, 2017 pretrial conference. (Doc. No.
269.) The docket also reflected that, as of December 20,
2017, Plaintiff had requested the issuance of another trial
subpoena by the Pro Se Intake Office. And on December 22,
2017, Plaintiff again subpoenaed witnesses whose testimony
the Court had already precluded at the initial pretrial
conference. (Doc. Nos. 284, 285, 286.) Plaintiff&#39;s
December 20, 2017 submission and the Pro Se Intake
Office&#39;s docket entry prompted the Court to issue another
order directing Plaintiff to cease subpoenaing third parties
without prior approval from the Court and requiring that
Plaintiff file a premotion letter with the Court prior to
filing any additional &ldquo;motions.&rdquo; (Doc. No.
273.)[3] This directive was largely duplicative of
the Court's November 18, 2015 order, which instructed
Plaintiff not to file any ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.